Concerns Over the Conditionality of Human Rights Protections in New ASEAN Declaration

The Association for Southeast Asian Nations (ASEAN) adopted a Human Rights Declaration (Declaration), the first for the region, at its summit in Phnom Penh on November 18, 2012, despite concerns from the UN High Commissioner for Human Rights, national governments, and rights groups that the Declaration does not meet international human rights standards. The concerns regarding the Declaration can be separated into two categories: 1) concerns about the drafting procedure for the document and 2) concerns about the wording of the Declaration. The UN High Commissioner for Human Rights in a news release expressed concern about the procedure’s “lack of inclusive and meaningful consultation with civil society in the region during its preparation.”

Despite a last-minute amendment to the Declaration mandating that Member States enact the Declaration in line with international human rights standards, groups including Human Rights Watch and Amnesty International continued to criticize the Declaration, in part because the Declaration is not legally binding. Another concern is that the Declaration will be unenforceable and thus have few practical implications for those it is supposed to protect. Unlike other regional human rights systems, ASEAN does not have a court tasked with investigating and prosecuting individual claims of human rights abuses, and the organization’s human rights commission has limited power to handle such cases. The organization is therefore unable to compel Member States to comply with either the new Declaration or preexisting human rights declarations and conventions to which its members may be parties.

Other criticism focused on the language of the Declaration. Article 7 establishes that the “realization of human rights must be considered in the regional and national context” and under the consideration of “different cultural, religious and historical backgrounds.” The International Commission of Jurists points out that the language challenges the principle of universality of human rights, a cornerstone of international human rights law. This principle, first emphasized in the Universal Declaration of Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions.

Article 8 of the ASEAN Declaration provides that all of the rights in the Declaration will be subject to restrictions on a number of grounds, including public morality and the general welfare of society. It does not take into account the International Covenant on Civil and Political Rights (ICCPR), which establishes that rights may be subjected only to limitations that are prescribed by law and necessary. Article 5 of the 1993 Vienna Declaration establishes the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic, and cultural systems. Article 4 of the ICCPR provides that with proper process some rights can be derogated, but there are some rights that cannot be derogated.

Additionally, while the Declaration addresses issues such as human trafficking, torture, arbitrary arrest, and child labor, the UN Human Rights Council urged ASEAN to include provisions for statelessness and the principle of non–refoulement, the prohibition on returning an individual to a place where there is a real risk of inhuman or degrading treatment.

Concerns over the Declaration’s shortcomings notwithstanding, the adoption of the ASEAN Declaration of Human Rights shows the interest of the ten Member States of ASEAN in engaging in human rights processes. Governments in other parts of the world have referenced it in recent denouncements of human rights violations by individual Member States. In addition, activists in the region have begun invoking the Declaration to challenge the organization’s policy of non-interference in its members’ internal affairs by calling for more ASEAN intervention when human rights abuses are alleged. However, certain provisions of the ASEAN Declaration raise concerns that it may in fact be contrary to the human rights principle of universality, undermining the standards for human rights obligations. Because the Declaration allows individual governments to define human rights by domestic standards instead of international ones, ASEAN may need to reassess its non-interference policy if it hopes to continue to develop a workable regional human rights system.

Good piece of work; but I have a question, what do the authors think the international community should do to encourage the ASEAN to bring its Human Rights Declaration in conformity with recognized standards of international human rights law?